PRESERVING THE SILENCE: DIFFERENT SPHERES OF SECTION 313 CRPC AND ARTICLE 20(3)
Section 313 of the Criminal Procedure Code, 1973 (“CrPC”) has a profane silhouette around it. After the prosecution has closed its evidence, the accused is given a chance to explain the incriminating matter in evidence against him or her. No matter how bleak or scanty the prosecution evidence is, the court has to provide an opportunity for an explanation by examining the accused. The examination tends to engineer a direct dialogue between the court and the accused and not only benefits the accused, but also the court in reaching the fundamental conclusions of the case. Its impetus is not to pummel the accused but to comply with the sacrosanct principle of hearing the other side i.e. audi alteram partem.
The explanations given by the accused recorded under this section “are among the most important matters to be considered at the trial". It confers an opportunity for the accused to establish innocence and comes under the purview of the right to a fair trial under Article 21 of the Indian Constitution. Moreover this provision is so beneficial to the accused that there are cases where he can produce clinching evidence which may not even require him to produce defence evidence further in the trial”.
Under this Section, the accused can either remain silent, simply deny or explain their version of the offense. However, in the cases of silence or false explanation, the court is entitled to chalk out an adverse inference against the accused as per the law. Many scholars have suggested that the concept of adverse inference on silence gravely dilutes the right to silence, constitutionally guaranteed under Article 20(3).
This paper is in response to this contention and seeks to countermand it by showing how Section 313 is in tune with the constitutional right to silence. There are two arguments that would be used to support this contention. Firstly, I suggest that the right to silence operates when the defendant gives evidence while in Section 313, only explanation not amounting to evidence stricto sensu is given. Secondly, the right to silence is impliedly protected because adverse inference cannot be drawn if the prosecution has not proved its case.
Importance of Section 313 CrPC
Before venturing further, it is imperative to be cognizant of the importance of this Section. It can be adjudged from two aspects – a) where the death sentence is sought to be imposed and b) where the accused is not mentioned in the First Information Report ("FIR") but has been implicated in the trial.
a. Where death sentence is sought to be imposed
In Ram Dep Prasad v. State of Bihar, the accused was awarded the death penalty on the charges of raping a four-year-old child which ultimately led to her death. The Supreme Court of India (“SC”) delineated the importance of Section 313 to elicit the true fundamentals of the case. It is worth perusing the statements in this case:
Have you heard the statements of the witnesses?
Against you the charge and evidence are that on 20-12-2004 in the night at 12.00 you went to the house of Kamruddin Miyan, s/o Babujaan Miyan, Village Badka Gaon, Police Station Pachrukhi, District Siwan and abducted his daughter Laila Khatoon (6 years).
There is also evidence against you that you committed rape on her and flung her in the field and as a result, she died.
Do you have anything to say in your defence?
I have been falsely implicated. The villagers have wrongly declared me as mad”.
The SC remarked how Section 313 was reduced to a mere shadow. The first question was a nugatory and futile exercise. The second question was, again, a mockery because there was no charge of abduction against the accused in the first place and the whole exercise was narrowed to one last question on which death sentence was upheld. The Court defeatedly opined that it is not a mere formality and that the court has to give undue importance to Section 313 when the death sentence is in the case. This case highlights the need to have a correct application of this Section to avoid great perils for the accused.
When the accused is not mentioned in the FIR
In Khairuddin v. State of W.B., some accused persons, though not named in the FIR, were falsely implicated in the case. The SC used the very Section 313 statements to acquit them and held that its object is to obtain the truth besides examining the veracity of the prosecution. It is used as a tool to prevent the prosecution from casting their net wider and accusing those who may not even be present on the spot of occurrence. These two aspects fundamentally chart the materiality of the Section.
Evidence vs Explanation
Article 20(3) mandates against compelling any accused to be a witness against himself. A witness is a person who testifies or gives evidence. Under the Oaths Act 1969, a witness has to make an oath before tendering any evidence. In State of Maharashtra v. Nagpur Electric Light and Power Co. Ltd., it was explicitly held by the Bombay High Court that to witness is an act of furnishing the evidence. Taking this very idea forward, in Godrej Soap Ltd. v. State, the Calcutta High Court held that Article 20(3) can only apply to the accused who chooses to become a witness, and since company/corporate bodies cannot render oath, they are outside the purview of being ‘witness’.
In the same vein, Article 20(3) has no application over Section 313 because the statement of the accused is not a piece of substantive evidence, but an explanation of the incriminating materials put on record by the prosecution. Although it can be taken as an aid in any enquiry or trial, it is not evidence stricto sensu. Because of the discernment between evidence and explanation, it can be used merely to lend credence to other evidence led by the prosecution and cannot be considered in isolation. As it is a mere explanation, it can be considered only a juxtaposition of the prosecution's evidence.
Moreover, a witness is free to testify freely but under Section 313, the accused is bogged down by the established prosecution evidence. The accused cannot take a stance that goes astray from the prosecution's version. In this way, this stance is a narrowed sphere and thus not evidence. In Purshottam Chopra v. State (NCT of Delhi), the SC held that an explanation has to be in line with facts and cannot be anything in the guise of incomplete and uncertain defence theory.
Moreover, certain quintessence in Section 313 themselves shows that the statement is not evidence. Section 313(2) mentions that an oath cannot be administered while recording statements which succinctly proves that the accused is not a witness under this provision. In Dehal Singh v. State of H.P., the SC held that as the oath is not administered to the accused under this section; the statement is not evidence under Section 3 of the Indian Evidence Act. Further, as there is no scope of cross-examination regarding these statements, it is not evidence per se.
This is also crystal clear from the discernment between Section 313 and Section 315 CrPC. The latter section has made provisions for the accused to appear as a witness and tender evidence on his or her behalf for disproving the charges. It is under this Section, that the accused enters the witness box, takes an oath, and faces the music of cross-examination. As it is evidence stricto sensu, the application of Article 20(3) assumes no hindrance. Further, in Sukhdev Bhimrao Hastapure v. State of Maharashtra, it was held that plea of denial as an explanation by the accused cannot be taken as a plea of alibi which is specifically raised in the form of evidence by the accused. This dissection and separate provision for the accused being a witness carries forward the point that Section 313 is outside the purview of tuning the accused as a witness.
In Mohan Lal v. Ajit Singh, the SC gave a very unique reasoning which justifies the crux of the argument. The Court evaluated the 'prosecution witness testimony on oath' and 'mere statement of accused under Section 313’ on two different scales and concluded that the testimony on oath cannot be rejected simply because it is contradicted by the mere statement of the accused. The placing of these two on different scales; one heavier than the other, justifies that the mere statement is a mere statement and not evidence. Had it been evidence, the court would not have kept either on different scales.
As a coda, an attempt to offer two nanoscopic points to justify the argument further is made. First, it is a settled position that no one can depose on the behalf of a competent witness. But in State (Delhi Admn.) v. Dharampal, the SC held that if some circumstances have not been put to the accused, they can be put to the accused’s counsel to elicit an explanation. In Nar Singh v. State of Haryana, SC held that the appellate court can ask for the defence counsel to offer an explanation treating the accused and his counsel as mirror images.
Second, some claim that the use of the word 'examine' in the Section 313 heading shows that the accused is a witness and Article 20(3) is applicable. But it has been settled in State of Mizoram v. Vanlalchhanga, that the examination is not an interrogation/cross-examination of the accused but an opportunity for explanation. Thus, the mirror imagery and the examination aspect further solidify the kernel of the argument.
Adverse Inference and Right to silence
It is generally argued that taking adverse inferences from the refusal of the accused to explain anything or remaining silent violates the right to silence. But this is a fallacious argument as the right to silence ceases at some point. In Nandini Satpathy v. Dani (P.L.) ("Nandini"), Justice Krishna Iyer cautioned against the wide import of this Article to exclude even those statements which are not inherently sinister. In State of Bombay v. Kathi Kalu Oghad (“Oghad”), it was remarked that the Article protects the accused only from making those statements when they can probably make a case against him or have a material bearing on his criminality. Further in Selvi v. State of Karnataka (“Selvi”), it was remarked that the Article cannot ignore the setting or integral circumstances of the situation.
The argument is that adverse inference cannot violate the right to silence because of the setting or integral circumstances and its non-sinister import. Adverse inference can only be drawn when the prosecution has fully established its case by proving all incriminating evidence. Adverse inference comes either from silence or from false explanation when the prosecution has already established the case beyond a reasonable doubt. When the case has been established fully, the ensuing silence further completes the chain of action and acts as additional circumstances justifying the guilt. It is in this setting or integral circumstance, based on Selvi's dictum, that precludes the operation of the privilege of silence.
This context is more conspicuous in the cases where the facts are exclusively within the accused’s knowledge. Section 106 of the Indian Evidence Act mentions that the burden of proving the fact lies on the person having exclusive knowledge of that fact. In Sunil Mahadeo Jadhav v. State of Maharashtra, the accused arrested the deceased and put him in lock up thereafter. It was revealed later that there were certain injuries on the deceased’s body after the arrest. It was held, as per evidentiary standards, that the accused must explain the injuries as this fact was within his exclusive knowledge. The privilege of silence cannot be availed because of the setting or integral circumstances necessitated by the fact of exclusive knowledge of the facts.
In State of W.B. v. Mir Mohammad Omar, the deceased was abducted by the accused and he alone knew what happened to him until he was with them. The prosecution established the abduction fully and the court found it obligatory upon the accused to tell what was meted out to the deceased. In such a case, due to setting or integral circumstances, the silence would go against the evidentiary rule and cannot be claimed as a fundamental right.
In State of Karnataka v. Suvarnamma, the SC noted this and held that though Article 20(3) incorporates the fundamental right against self-incrimination, the scope and content of the right cannot trump the burden on the accused to disclose the facts exclusively within his or her knowledge. Any false plea or silence has to be construed as an additional circumstance furthering the guilt of the accused.
This brings us to the Nandini and Oghad dictum that Article 20(3) protects only those statements which have a sinister import and can expose criminality. But in the case of Section 313, this doesn’t apply because the criminality has already been established by the prosecution fully leaving no scope of sinister import. The chain of circumstances showing the guilt has been completed leaving no specific ground consistent with the innocence of the accused. The explanation intends to relieve the accused from the criminality and thus, Article 20(3) can have no scope of application.
The two arguments delineate fully the different and exclusive spheres of application of Section 313 and Article 20(3). It cannot be argued that Section 313 violates the right to silence because inherently there is no coercion as the accused has three options:
a) to remain silent or
b) simply deny
c) or, to explain the involvement in the offence by reasons.
An adverse inference can only be drawn if the incriminating materials are established without exception. Article 20(3) protects the accused from manifestly unjust methods of interrogation. There have been instances where courts have protected the accused by not drawing adverse inferences and protecting his right to silence because the prosecution had not established the case fully. In Abdul Azeez P.V. v. State of Kerala, the court protected the right of the accused to remain silent and declined to draw any adverse inference because the incriminating materials hadn’t been established. The court held that Section 313 cannot be used to fill up the lacunae in the prosecution case.
Thus, it can be finally concluded that the two provisions aim to create a fair balance between the state and individual in the criminal cases. But by allowing the accused to remain silent in certain circumstances, the task of adjudication of guilt becomes unduly difficult. The criminal justice system intends to ensure public safety through expediency in trials, and the right to silence cannot be allowed to operate at the cost of such utilitarian values.
*The article has been written by Pragun Goyal, 3nd Year B.A. LL.B student at National Law University, Delhi*